{ "id": 2512967, "name": "STATE OF NORTH CAROLINA v. BERNARD DARRILL DEGREE", "name_abbreviation": "State v. Degree", "decision_date": "1988-05-05", "docket_number": "No. 635A87", "first_page": "302", "last_page": "309", "citations": [ { "type": "official", "cite": "322 N.C. 302" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "351 S.E. 2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "refusal to reconsider eighth amendment holding in Higginbottom" } ], "opinion_index": 0 }, { "cite": "318 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737137 ], "year": 1987, "pin_cites": [ { "parenthetical": "refusal to reconsider eighth amendment holding in Higginbottom" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0674-01" ] }, { "cite": "324 S.E. 2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "312 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4752702 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "763-64" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0760-01" ] }, { "cite": "158 S.E. 2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "17" } ], "opinion_index": 0 }, { "cite": "272 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572279 ], "year": 1967, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0227-01" ] }, { "cite": "286 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "539" } ], "opinion_index": 0 }, { "cite": "305 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566171 ], "year": 1982, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0106-01" ] }, { "cite": "325 S.E. 2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "188" } ], "opinion_index": 0 }, { "cite": "312 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758195 ], "year": 1985, "pin_cites": [ { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0669-01" ] }, { "cite": "352 S.E. 2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "432", "parenthetical": "quoting State v. Young, 312 N.C. 669, 680, 325 S.E. 2d 181, 188 (1985" } ], "opinion_index": 0 }, { "cite": "319 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748383 ], "year": 1987, "pin_cites": [ { "page": "79", "parenthetical": "quoting State v. Young, 312 N.C. 669, 680, 325 S.E. 2d 181, 188 (1985" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0073-01" ] }, { "cite": "355 S.E. 2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "492-93" } ], "opinion_index": 0 }, { "cite": "319 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4742094 ], "year": 1987, "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0437-01" ] }, { "cite": "337 S.E. 2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "315 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714446 ], "year": 1985, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0273-01" ] }, { "cite": "302 S.E. 2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "777" } ], "opinion_index": 0 }, { "cite": "308 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708886 ], "year": 1983, "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0515-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 715, "char_count": 15674, "ocr_confidence": 0.822, "pagerank": { "raw": 1.2642158617905972e-07, "percentile": 0.613160458389659 }, "sha256": "926aeab210901d064e22ea5feb1989477bb1010345e6e57ab7819b74976ce393", "simhash": "1:aea7b12374e90350", "word_count": 2590 }, "last_updated": "2023-07-14T21:30:38.561214+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. BERNARD DARRILL DEGREE" ], "opinions": [ { "text": "WHICHARD, Justice.\nDefendant was convicted of first degree rape, N.C.G.S. \u00a7 14-27.2(a)(1) (1986), and sentenced to life imprisonment. We find no error.\nThe State\u2019s evidence, in pertinent part, showed the following:\nOn 13 September 1986 the victim, age eleven, spent the night with defendant\u2019s sister, Tenisha Degree, age twelve, at the home of defendant\u2019s mother. The victim slept in a bed with the sister, but the sister got up and left the room sometime during the night.\nDefendant came into the room and lay down on top of the victim. He tried to pull up the victim\u2019s skirt, to pull down her underclothes, and to insert his penis into her vagina. The victim resisted, but defendant ultimately \u201cgot it in [and] start[ed] moving around.\u201d\nThe victim tried to push defendant off, but he would not get up. She felt defendant\u2019s penis moving around in her vagina. Defendant was on top of her with his penis inside her vagina for about five or ten minutes. The following morning the victim told Danielle Kee, defendant\u2019s niece: \u201c[L]ast night [defendant] got me.\u201d\nThe victim had not been \u201cseeing\u201d or \u201cdating\u201d defendant. She had not had previous or subsequent intercourse with anyone other than defendant.\nIn January 1987 the victim went to the health department because she had been feeling sick and sleeping a lot. She was found to be approximately twenty-one weeks pregnant. She told her mother that defendant was the father. The baby was born on 27 May 1987.\nAn investigating officer with the Hickory Police Department testified that the victim told him that defendant had intercourse with her on approximately 13 September 1986. He further testified that defendant told him that defendant\u2019s birthdate was 20 July 1968.\nDefendant presented the following pertinent evidence:\nDanielle Kee, defendant\u2019s niece, denied that the victim had told her that defendant \u201cgot her.\u201d She testified that on the morning following the alleged incident, the victim did not seem upset and did not mention that anything had happened. She further testified that defendant had requested that she ask the victim why she had told \u201cthat lie\u201d on him. When she did, the victim responded: \u201cI didn\u2019t tell no lie. My momma told that lie.\u201d On cross-examination Kee testified that defendant was eighteen years old.\nTenisha Degree, defendant\u2019s sister, testified that the victim had not told her that defendant had done anything to her. She had not noticed anything indicating that the victim was upset. On cross-examination she testified that defendant\u2019s birthdate was 20 July 1968 and that he was eighteen years old at the time of trial.\nSonya Kee, defendant\u2019s niece, testified that the victim had not mentioned the incident to her. She further testified that defendant had never told her that he had sex with the victim.\nMinnie Degree, defendant\u2019s mother, testified that on the day following the alleged incident she had not noticed anything unusual about the victim. Defendant had never told her that he had sex with the victim that evening.\nOn cross-examination, however, she testified that when she asked defendant if he had intercourse with the victim, he said nothing but \u201cjust walked away.\u201d She further testified on cross-examination that defendant\u2019s birthdate was 20 July 1968 and that he was eighteen years old at the time of trial.\nLeroy Gantt, defendant\u2019s father, testified that when he \u201cgot on [defendant\u2019s] case\u201d about having \u201csex with this girl,\u201d defendant denied it. He testified on cross-examination that defendant was born on 20 July 1968.\nOn cross-examination of the victim, defense counsel asked:\nQ. Now, isn\u2019t it true that you\u2019d dated several boys previous to September of \u201986?\nThe prosecutor objected. Before the trial court ruled, the victim answered: \u201cNo.\u201d The court then overruled the objection.\nDefense counsel next asked:\nQ. Have you ever dated Marcus Hannah?\nThe prosecutor again objected, the court sustained the objection, and the victim nevertheless responded in the negative.\nDefense counsel\u2019s next question was:\nQ. Now, isn\u2019t it true that your mother had to chase some boys out of your bedroom at your house?\nThe court sustained the prosecutor\u2019s objection and thereupon excused the jury. Following discussion in the absence of the jury, the court indicated to counsel that, absent prior inconsistent statements of the victim that would impeach her declaration on direct examination that she had had no prior sexual relations, evidence of the type defense counsel sought to elicit would be excluded. Defendant assigns error to this exclusion.\nNothing else appearing, the exclusion was proper under Rule 412(b), which provides:\n(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:\n(1) Was between the complainant and the defendant; or\n(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or\n(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant\u2019s version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or\n(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.\nN.C.G.S. \u00a7 8C-1, Rule 412(b) (1986). The exceptions to inadmissibility contained in the rule are inapplicable here; indeed, defendant does not contend otherwise. He argues, instead, that the State opened the door to questions of this nature by asking the victim on direct examination whether she had had intercourse with any man other than defendant prior or subsequent to 13 September 1986, and that he thus should have been allowed to impeach the victim\u2019s negative answer for the purpose of casting doubt on her credibility.\nIn the absence of the jury, the trial court stated to defense counsel that it \u201cmight allow ... a prior inconsistent statement concerning events relating to other people for the purpose of impeachment only.\u201d Defense counsel indicated that \u201c[t]here are no statements other than what [the victim] has said on the stand.\u201d\nAssuming that the State could, and did, open the door \u2014 for impeachment purposes \u2014 to the introduction of evidence regarding the victim\u2019s sexual behavior, defendant clearly had no such evidence to offer. By the questions asked, he sought to embark upon a fishing expedition, hoping it would yield the desired evidence. Had defendant possessed evidence of the victim\u2019s sexual behavior which he contended was relevant for impeachment purposes, he could have requested an in camera hearing to determine its relevancy and admissibility. N.C.G.S. \u00a7 8C-1, Rule 412(d) (1986). He made no such request, however, and absent such request exclusion of his merely expeditionary questions accords with the letter and the purpose of the rape shield statute. Id.\nDefendant next contends that the trial court erred in allowing testimony from an officer in response to a leading question which contained facts not in evidence. The question related to a reference on the police case folder to an incorrect date of the alleged offense. The matter in question was inconsequential, and this argument is frivolous.\nDefendant next contends that the trial court erred in allowing his statement, which included his birthdate, into evidence. The basis of the argument is that the statement served to establish an element of the offense, and the officer had not given defendant the required warnings. See Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694 (1966).\nThe following witnesses also testified to defendant\u2019s age, birthdate, or both: (1) the victim; (2) defendant\u2019s niece; (3) defendant\u2019s sister; (4) defendant\u2019s mother; and (5) defendant\u2019s father. In view of this evidence, assuming, arguendo, that the court erred in admitting defendant\u2019s statement as to his birthdate, we find the error harmless beyond a reasonable doubt. N.C.G.S. \u00a7 15A-1443(b) (1983); Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705 (1967).\nDefendant next contends that the trial court erred in denying his motion to dismiss made at the close of the State\u2019s evidence. We recently stated:\nA motion to dismiss for insufficiency of the evidence is tantamount to a motion for nonsuit under N.C.G.S. [\u00a7] 15-173. State v. Greer, 308 N.C. 515, 519, 302 S.E. 2d 774, 777 (1983). Under N.C.G.S. [\u00a7] 15-173, a defendant who introduces evidence waives any motion for dismissal or nonsuit made prior to the introduction of his evidence and cannot urge the prior motion as ground for appeal. N.C.G.S. [\u00a7] 15-173 (1983); State v. Bruce, 315 N.C. 273, 280, 337 S.E. 2d 510, 515 (1985); see also N.C.R. App. P. 10(b)(3).\nState v. Stocks, 319 N.C. 437, 438, 355 S.E. 2d 492, 492-93 (1987). Defendant offered evidence following the denial of his motion to dismiss at the close of the State\u2019s evidence. The denial of that motion is thus not properly before us for review.\nDefendant further contends, however, that the trial court erred in denying his renewed motion to dismiss made at the close of all the evidence. In considering this motion, the trial court was required to view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from it. State v. Williams, 319 N.C. 73, 79, 352 S.E. 2d 428, 432 (1987) (quoting State v. Young, 312 N.C. 669, 680, 325 S.E. 2d 181, 188 (1985). If there was substantial evidence \u2014 whether direct, circumstantial, or both \u2014 to support a finding that the offense charged was committed and that defendant committed it, the case was for the jury, and the motion to dismiss was properly denied. Id.\nTo convict defendant of the offense charged, the State had to prove that he engaged in vaginal intercourse with a victim under the age of thirteen years, when he was at least twelve years old and at least four years older than the victim. N.C.G.S. \u00a7 14-27.2(a) (1) (1986). Viewed in the light most favorable to the State, as required, the evidence sufficed to meet the State\u2019s burden. The victim testified that she was born on 7 January 1975, that she was eleven years old in September 1986, and that in September 1986 defendant penetrated her vagina with his penis for a period of five to ten minutes. Several witnesses testified that defendant was born on 20 July 1968, thus making him eighteen years old\u2014 and more than four years older than the victim \u2014 at the time of the offense. There was substantial evidence of all elements of the offense charged and of defendant as the perpetrator. Indeed, defendant does not contend otherwise; he only argues alleged inconsistencies, discrepancies, and weaknesses in the State\u2019s case. These, however, were for the jury to resolve. The State had met its burden of proof, and the motion to dismiss was properly denied. For the same reasons, defendant\u2019s oral post-trial \u201cMotion for Appropriate Relief . . . and ... to set aside the verdict as contrary to the weight of the evidence\u201d was also properly denied.\nDefendant finally contends that a mandatory sentence of life imprisonment, under the facts of this case, violates the eighth and fourteenth amendments to the United States Constitution and Article I, section 27 of the North Carolina Constitution. Defendant did not present this argument in the trial court, however, and it is well-established that appellate courts ordinarily will not pass upon a constitutional question unless it was raised and passed upon in the court below. State v. Hunter, 305 N.C. 106, 112, 286 S.E. 2d 535, 539 (1982); State v. Dorsett and State v. Yow, 272 N.C. 227, 229, 158 S.E. 2d 15, 17 (1967). We thus do not pass upon the question.\nWe note, however, that we have held that a mandatory sentence of life imprisonment for first-degree sexual offense is not so disproportionate as to constitute a violation of the eighth amendment to the Constitution of the United States. State v. Higginbottom, 312 N.C. 760, 324 S.E. 2d 834 (1985). See also State v. Cooke, 318 N.C. 674, 351 S.E. 2d 290 (1987) (refusal to reconsider eighth amendment holding in Higginbottom). \u201cSince it is the function of the legislature and not the judiciary to determine the extent of punishment to be imposed, we accord substantial deference to the wisdom of that body.\u201d State v. Higginbottom, 312 N.C. at 763-64, 324 S.E. 2d at 837.\nNo error.\n. Defendant has included in the appendix to his brief a written motion for appropriate relief dated 22 October 1987 and signed by counsel other than his counsel on appeal. The motion is captioned in the Superior Court Division, Catawba County, and apparently has been filed in that division. Defendant acknowledges that this motion has not been heard or ruled upon by the trial court, but nevertheless asks that we consider the \u201cadditional evidence\u201d contained therein in passing upon the propriety of the denial of his oral motion at trial for appropriate relief and to set aside the verdict.\nSo far as the record before us reveals, the Superior Court, Catawba County, has not passed upon that motion. Matters contained therein thus are not properly before us, and we have not considered them.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Linda Anne Morris, Associate Attorney General, for the State.", "E. X. de Torres for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BERNARD DARRILL DEGREE\nNo. 635A87\n(Filed 5 May 1988)\n1. Rape and Allied Offenses \u00a7 4.3\u2014 victim\u2019s sexual behavior \u2014 impeachment of testimony \u2014 exclusion of expeditionary questions\nEven though the State, by eliciting testimony of a rape victim on direct examination that she had not had intercourse with any man other than defendant prior or subsequent to the date of the crime, may have opened the door to defendant\u2019s introduction of evidence for impeachment purposes regarding the victim\u2019s sexual behavior, mere expeditionary questions which defendant asked the victim on cross-examination were properly excluded by the trial court under the rape shield statute. N.C.G.S. \u00a7 8C-1, Rule 412(b) (1986).\n2. Criminal Law \u00a7 169.3\u2014 defendant\u2019s statement of birthdate \u2014 absence of Miranda warnings \u2014 erroneous admission cured by other evidence\nAssuming, arguendo, that the court in a first degree rape case erred in admitting defendant\u2019s statement to an officer as to his birthdate because defendant had not been given the Miranda warnings, such error was harmless beyond a reasonable doubt in view of testimony as to defendant\u2019s age, birth-date, or both by the victim and by defendant\u2019s mother, father, sister and niece.\n3. Rape and Allied Offenses 8 11\u2014 rape of child under age thirteen \u2014 sufficiency of evidence\nThe evidence was sufficient to support defendant\u2019s conviction of first degree rape under N.C.G.S. \u00a7 14-27.2(a)(l) (1986) where the victim testified that in September 1986 defendant penetrated her vagina with his penis for a period of five to ten minutes, that she was born on 7 January 1975, and that she was eleven years old in September 1986, and where several witnesses testified that defendant was born on 20 July 1968, thus making him eighteen years old and more than four years older than the victim at the time of the offense.\nAppeal of right by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) (1986) from a conviction of first degree rape before Gudger, J., and the imposition of a life sentence, at the 13 July 1987 Criminal Session of Superior Court, CATAWBA County. Heard in the Supreme Court 12 April 1988.\nLacy H. Thornburg, Attorney General, by Linda Anne Morris, Associate Attorney General, for the State.\nE. X. de Torres for defendant-appellant." }, "file_name": "0302-01", "first_page_order": 346, "last_page_order": 353 }